Fear of malpractice lawsuits with supposedly growing payouts in a litigious society have led doctors to leave states with high malpractice premiums, lobby to enact non-economic damage caps (“pain and suffering”), practice “defensive” medicine (order generally unnecessary tests that they would not generally order except to prove disease X is not present, even though it is usually vanishingly rare). These are concerns because malpractice premiums the doctors pay in many states have skyrocketed.

Perhaps, however, doctors aren’t effectively disciplining their own. The same Public Citizen report shows only 1/3 of doctors with 10 or more malpractice payouts against them were disciplined by their State Medical Boards:

And so, as I said, doctors have lobbied for damage caps. As this GAO report suggests, it may be working to slow premium increases. This report also suggests that in many of the “problem states” with high malpractice costs, doctors are either leaving the state or leaving a particular practice because of costs, leaving both Emergency and Newborn care at risk. A rural Pennsylvania hospital no longer has an Orthopedics department because their orthopedists left. This is clearly not satisfactory for the patients this hospital serves.

Another problem–when and if a case does make it to trial, it simply turns into a he said-she said, in a Battle Royale of expert witnesses. Plaintiffs’ bring in doctors paid to argue their side of things, and defendants’ bring in doctors paid to argue their side of things.

We can take a look at other countries. But first, we’ve got to look at our whole health care system. We as physicians have to look at a system where if we make a mistake, we’re making a mistake in a system that provides for little support for the patient to which it happened. That if you are negligent and cause a grave disability to another person, that person is sure shit out of luck. That until they’re 65, that grave disability is not just a disability, it’s often a major personal and financial liability. Because it’s now become a pre-existing condition. And at that point, without any guarantee that the problem or its complications–that you caused, mind you–will be paid for, of course people are going to sue sue sue! If a 30 year-old patient loses his health insurance tomorrow, he’s got a good 35 years of extra health problems to pay for. (And mind you, the patient knows his or her lawyers are going to take over half the settlement, anyway.)

But patients need to pony up, too. People should be compensated for malpractice, but not bad outcomes. Americans must realize that death is part of life. That, for the most part, doctors are slowing death and prolonging life. If we weren’t here, their loved ones would die without our life-prolonging treatments that we’ve spent so long to learn. Surely this low bar should not be the standard we hold ourselves to as physicians, but there needs to be a way to quickly nip classic “adverse outcomes” lawsuits in the bud. There are certainly cases where it’s murky, but there are plenty of cases where a bad outcome or known risk is brought to court. I’m sorry, patients–I know you’ve come to expect perfection from your physicians. But we are unfortunately all too human to live up to that standard. Bad things happen. If 5% of people die from surgery X, you could be one of them. This is why sometimes doing less is more.

And this is why I support a no-fault medical malpractice system. (This Slate article is a good start.) “No fault” is how malpractice works in a bunch of countries–and even how specific types of malpractice problems (bad birth outcomes) are handled in a few states. No-fault systems are great for problems like we face in medicine–that we try to avoid them as often as possible, but they admitedly happen. (They also take most of the money that currently goes to lawyers and gives it to patients that truly deserve it.) Quoting the Slate article:

In Sweden, when a patient suffers avoidable injury, whether through gross negligence, such as a botched surgery, or through a more understandable but avoidable mistake, such as a misdiagnosis or medication error, the patient—usually with help from the doctor’s office—fills out a form requesting compensation. That request, along with relevant doctor and hospital staff reports, gets reviewed by an adjuster who decides whether the injury might have been avoided had treatment differed. If the claim passes that hurdle, a panel of legal and medical experts considers it. If the panel decides the injury rose from avoidable error, the patient is compensated. The award varies according to the nature of injury, the degree and duration of the patient’s disability, the expenses incurred, and other factors; it may also include compensation for pain and suffering. The entire process usually takes less than six months. Patients who feel unfairly denied or undercompensated can appeal, but they cannot sue. The system is funded by premiums charged to regional organizations of medical facilities and physicians. These premiums are substantially lower and more stable than malpractice premiums in a tort system.

Such a system would generate more claims than does our present malpractice system—indeed, compensating more of the injured is part of the point. The system would save money, however, by eliminating punitive damages and legal costs. The legal and administrative costs of our present system (lawyers’ fees, court costs, paid experts) account for 60 percent of the estimated $24 billion the malpractice system consumes each year. A no-fault system would cut that to 20 percent or 30 percent, roughly doubling the money available for the injured.

Another option, which seems to be more bureaucratic (but have more precedent in the US) would be health courts, where malpractice cases would go to a specific branch of the Judicial system and cases would be heard by groups of medical experts, who could more objectively decide what is malpractice and what is bad outcome. (There are separate tax courts and patent courts for these specific types of complaints.)

Comments

I was reading the first part of this re: adverse outcomes and I thought, you know what would fix this, No fault insurance. I learned about the scandinavian system as an undergrad in Medical Sociology and I think it is vastly superior to what we do in the USA. Then boom, there it is. You and I are on the same wavelength. Very nice post. How do you deal with accusations of your bias on the subject as a physician?

Look, I think patients should be fairly compensated when a physician messes up. The system needs to have a way to deal with errors, which will, without a doubt, happen. I think the no-fault system would bring more money to patients, since half of malpractice money goes to lawyers’ fees–and would allow patients to get their money faster.

Personally, I would prefer the concept of health courts. I’ve long thought that this approach would be superior.

To me, whether someone is injured through a bad outcome, negligence, or even willfully intentional harm, I don’t think that they or some ambulance chaser should stand to become financially enriched.

Similarly, if some physician is either incompetent or willfully hurts patients, I don’t they should be able to simply make an out of court settlement or pay some jury award and then keep on practicing medicine and puting the rest of society at further danger.

I think a specific court system, made up of experts, rather than a jury of folks too stupid to get out of jury duty should be put in place.

I think a good model for this would be the U.S. Military’s system of courts martial.

If this board/court deems that a physician has been negligent, incompetent, or willfully harmful, then they should have the power to levy appropriate fines and punishments against that physician, including potentially such things as requirement for remedial education, financial fines, loss of license, jail time, etc.

I think as part of this, we absolutely need a societal safety net to protect folks from the ongoing financial burdens they might face as a result of a bad outcome, whether that outcome has been the result of bad medicine or just bad luck.

They absolutely should not face a life time of financial ruin from loss of income, loss of medical coverage, etc., again regardless of why they were injured. It shouldn’t matter if it is someones fault or not. We as a society should protect and help each other when needed.

To blame the sue-happy mentality on our current system however, where people can potentially face such ongoing financial hardship as the result of a medical injury or bad outcome, is in my opinion naive at best or disingenuous at worst.

Our sue-happy culture is by no means limited to the realm of healthcare. Our sue-happy culture has it’s slimy tentacles on virtually all aspects of our lives and society.

When some jury awards a person 5 million bucks for spilling some hot coffee in their lap at the McDonald’s drive through, this has absolutely nothing to do with a person being labled with a pre-existing condition and losing their health insurance.

When some idiot kid gets killed doing something stupid on his skateboard and a jury awards his parents a gazillion dollars in their lawsuit against the skateboard company or the poor hapless business owner in who’s parking lot the kid “Darwined” himself from the gene pool, that has absolutely nothing to do with loss of income or loss of health insurance for that (now dead) kid.

I blame our sue-happy culture on one thing and one thing only and that is myopic self-centered greed on the part of trial lawyers and their clients, with the willing support of an either stupid or similarly myopic self-centered and greedy segment of our society.

So, yes I absolutely think we need a societal safety net to protect folks from the aforementioned financial ruin that may result from a bad medical outcome (again, regardless of any cause or fault of that outcome). We do not however need our current system of jackpot justice whereby patients and/or their families, and lawyers stand to have substantial financial gain.

Nobody should strike it rich because their kid or their grandma gets injured or killed, regardless of WHY they were injured or killed.

There should be none of this pain and suffering payment nonsense, and there should be none of this punitive damages nonsense.

Going back to our health court concept, if the court feels the physician or hospital needs punishing, then they should levy such punishment, but there should be no transfer of wealth to any individuals as part of that punishment. If fines are levied as part of the punishment, they should go to the government.

If a patient or their family has suffered measurable objective economic damages and the health court deems it appropriate, then I could accept the court demanding the doctor or hospital compensate the victim for this loss. That should be the extent of any transfer of wealth however from the doctor to the patient. It should be limited to measurable objective real financial losses. Again, any other financial penalties the court levies on the doctor or hospital should go to the appropriate govt. body.

Again, for all of this to be feasable however, we do need to put in place a societal safety net to help take care of folks who suffer permanent disabilities, etc.

Like you, I have been writing a small series of posts in my own blog trying address some of our countries health care mess. I haven’t written my post on malpractice reform yet, but what I just wrote above in this comments section will be the gist of that post when I do write it.

Please continue with your well thought out posts. I enjoy reading them and find your viewpoints to be quite enlightening and valuable.

Oh, and as a final note, while I would ultimately greatly prefer the health court concept, I do think the Scandanavian no-fault system you highlight would still be massively superior to what we currently have.

Can’t reconcile no-fault insurance with the National Practitioner Data Bank.http://www.npdb-hipdb.hrsa.gov/
Physicians still get reported if a payment to a patient is made due to a medical misadventure. Too many hits on the NPDB and you are unemployable. Then what?
Dismantle the NPDB? Good luck with that one.
No fault still creates a “fear the bad outcome” approach. You are guilty and still have to prove that you are “innocent” if a patient suffers a known complication from a procedure. Either that or the system just decides to compensate everyone with a bad outcome. Still won’t change the mindset of physicians who practice to avoid the bad outcome.
Health courts are one of the best bets for changing the paradigm. Have knowledgeable arbiters weeding out frivolous cases from the get-go. Don’t put 12 people who “aren’t smart enough to get out of jury duty” in a position to decide complex medical issues.

It’s a quibble against an otherwise fine post, but the fact that doctors dedicate their careers to helping at great personal sacrifice is irrelevant to the med-mal discussion (doctors are already compensated for that sacrifice).

I agree that doctors are compensated for their sacrifice–I guess I meant more in the sense that it’s very hard for a physician to be sued for malpractice, as the vast majority have spent their lives learning how to best help people.

Anonymous:

“I blame our sue-happy culture on one thing and one thing only and that is myopic self-centered greed on the part of trial lawyers and their clients, ”

Actually, tort claims are down. The claims that are rising are businesses suing businesses, and those usually aren’t represented by “trial lawyers” (I assume you mean people who *gasp* represent ordinary people like you or I).

Why? Does the loss of one’s quality of life have no value? In that case, if you’re a person who does not work for a living, your case has basically no value. Rather than go to the trouble of pursuing a case, you’d be better off to go on govt. assistance. And you’ve certainly got no incentive to pursue the case just to reimburse your health insurer.

“We do not however need our current system of jackpot justice whereby patients and/or their families, and lawyers stand to have substantial financial gain.”

Do you know a med mal plaintiff with a big judgment who doesn’t have a devastating injury and thinks they won a “jackpot”? Want to trade places with someone with a big med mal verdict? I sure wouldn’t.

Where are these juries where judges let any smart person with a vague excuse off? Have any of you physicians ever tried to get out of jury duty with a clever excuse and it worked?

Health courts are nothing more than an expensive way of letting the fox guard the henhouse.

And no-fault, while a nice thought, has no chance except in conjunction with universal healthcare. If the insurers aren’t behind it, and they’re not, it ain’t happening.

Anon is obviously an attorney with a vested interest in the status quo.
Loss of one’s quality of life does have value … just not $20 million in value. I don’t care if you’re a bum in the street or Eliot Spitzer. There are very few instances in which pain and suffering is worth megamillions. Oh, and even when those patients do win the “jackpot,” who gets 40% of the judgment? That would be the lawyer.
Trading places with someone who had a big med mal verdict is irrelevant. No one would want to trade places with anyone who is horribly injured. The issue is whether there really is an injury (and I have seen several cases with multimillion dollar awards where there was no “injury”), whether the physician was negligent, and whether the physician caused the injury. Attorneys fight for “patient rights.” Funny how so many legitimate cases never go anywhere because lawyers don’t stand to make enough money on them. Seems like the only patients with “rights” according to the attorneys are the ones who have more than $250,000 in damages.
Health courts, like tax courts and patent courts, let those with knowledge about a subject decide the issues in a fair manner. Are you advocating doing away with all specialty court systems? Oh, I forgot. Patent cases usually involve corporations that can afford to pay attorney’s fees. Tax cases, too. Med mal plaintiffs can’t pay attorneys unless they win. A judge who could see through the “John Edwardsian” arguments about “feeling the baby’s pain” would nip a lot of the big money cases in the bud, so we have to keep the system of smoke and mirrors at the status quo.
“Letting the fox guard the henhouse?” That’s a joke. Using that logic, judges have been “guarding the henhouse” for legal malpractice cases since the advent of the court system. Wonder how many more legal malpractice cases there would be if all the judges were previously physicians instead of attorneys.
Be careful what you ask for with universal healthcare, anon. Be careful what you ask for.

Anon:

“Loss of one’s quality of life does have value … just not $20 million in value.”

In what case has $20 million been paid? And why is it not $20 million – what number do you think is the magic one? Or does it depend on factors such as age, health, etc?

“Oh, and even when those patients do win the “jackpot,” who gets 40%”

If the person wanted to find someone to take the case on an hourly basis, I’m sure they could. What would you charge to battle a very well financed opponent in a high stakes case where you were going to put out tens, if not hundreds of thousands of dollars of your own money and hundreds if not thousands of dollars of your time with no guarantee of recovery? Could you afford to pay that out of your pocket if you were the client?

“Trading places with someone who had a big med mal verdict is irrelevant. ”

It only becomes relevant when you call it a “jackpot”, which implies a stroke of luck resulting in huge good fortune. If you think it’s truly a jackpot, why wouldn’t you trade places with them?

“I have seen several cases with multimillion dollar awards where there was no “injury”),”

What were the names of the cases? Was that the actual payout, or was it reduced? If you find “several” out of all the claims, is this an epidemic?

“Funny how so many legitimate cases never go anywhere because lawyers don’t stand to make enough money on them. ”

What? Putting aside the fact you’ve not seen the evidence in 99.99% of all med mal claims so have no basis upon which to make that claim, the reason you don’t know much about the legit ones is because when they’re settled, the defense asks that it be confidential.

“Health courts, like tax courts and patent courts, let those with knowledge about a subject decide the issues in a fair manner.”

How so? What judge will be so educated across the wide spectrum of medical procedures that he will be an “expert” in all? Or will there be lots of judges? Who is going to pay for this unconstitutional bureacracy?

No, not really. Often patent cases involve startup companies which are cash poor. And there are a lot of individuals defending tax cases.

“A judge who could see through the “John Edwardsian” arguments about “feeling the baby’s pain” would nip a lot of the big money cases in the bud, so we have to keep the system of smoke and mirrors at the status quo.”

Tell me, where are the defense lawyers in this mythical world you concoted? How do juries see through these fake arguments 3 out of 4 times? Do facts enter into your reasoning at any point?

“Using that logic, judges have been “guarding the henhouse” for legal malpractice cases since the advent of the court system.”

How so? How many people on the bench are former med mal lawyers? Or Plaintiff’s lawyers? Or do you think all attorneys agree on all things?

Less assumption and more research would do you a lot of good.

John W. Thompson, MD:

I find my self in concurrence with “Whitecoat” although for practical purposes he/she is as anonymous as Anon. I have always been suspicious of the opinion of someone who doesn’t have the courage of conviction to more specifically identify himself/herself. The more Anon said the more I agree with Whitecoat that this person is probably an attorney.

Anon questions Whiecoat’s statement about $1 million plus awards when no serious injury has occurred. A classic example, although it wasn’t a malpractice case, is the one noted above about hot coffee spilling in the lap of the McDonald’s customer. In regards to trial lawyers not taking cases unless they think the possible award is over $250,000, I have been told by patients and friends that this is indeed the case.

There have been a lot of awards made based on “junk science” such as in the silicon breast prostheses cases. There have been numerous other multimillion dollar awards against Obstetricians not because the doctor really was negligent, but because the delivery resulted in a “bad baby” and the jury felt that “someone should pay.”

Anon speaks of defense attorneys and “fake arguments” which seems ti indicate that only the defense is guilty of “fake arguments.” Having been an orthopedist, for over 40 years, I have seen many plaintiffs, and their attorneys, that have tried to magnify a minor injury into as large an award as possible.

I do agree, that there are physicians and surgeons who should lose their licenses because of their incompetence. I also feel that if a patient has really been injured so to real negligence, not just the result of a known complication of a given procedure, economic damages should be awarded with no cap, if the damages are really justified. As a semi-retired orthopedic surgeon, I wouldn’t expect the same economic damages as when I was at the peak of my earning capacity. I sincerely believe that there should be a cap on “pain and suffering.”

For years I have thought that medical malpractice cases, and for that matter of fact, all personal injury cases should be tried before a “health court” composed of a combination of physicians and attorneys.

pilotdoc:

I the slide about payments adjusted for inflation, i would like to see a slide on physician payments adjusted for inflation. no doubt what that would look like. the reality is in an environment where physicians are in effect working for big insurance, they cannot pass on the cost of premiums to their “customers”.

I’m somewhat suspicious that this person may in fact be involved in the fisheries industry, given the abundance of red-herrings he/she offers while simultaneously very effectively demonstrating my original contention about self-centered myopic greed being at the heart of our sue-happy culture.

As he/she so uneloquently argues about the need to have unlimited value assigned to the subjective pain and suffering of an individual, he/she conveniently ignores the massive pain and suffering imposed upon our society as a whole by our broken tort system.

When I was in training in medical school and residency, I was personally aware of many patients who suffered major permanent disability and/or death as a direct result of specialists being forced out of practice in the rural areas of my state by the malpractice mess, the result being that diagnosis and treatment were delayed for hours as these patients were transported to the University Medical Center, which was the only place in the state where many specialists were still available.

Who shall these people and their families sue? What is their pain and suffering worth?

In the not too distant past, obstetrical care was a major part of the typical family medicine physician’s practice. During my residency training, I was required to follow lots of pregnant women and deliver lots of babies to help me prepare for this.

In the university setting, I found myself delivering babies from women who had traveled sometimes 4 hours or more because there was nobody available to deliver their child anywhere near where they lived.

I am personally not aware of a single family medicine physician in my entire state who still delivers babies. I am only aware of a paltry few who still provide prenatal care.

Although I have been extensively trained to do so, I provide no prenatal or obstetrical care. I do not dare due to the strong potential for litigation. Even if I wanted to provide such care, I doubt strongly that I would be able to convince me malpractice carrier to insure me for this. I am not a high risk physician either having never had a single claim of any kind ever made against me.

Who compensates all the pregnant women and their families for their pain and suffering as a result of this situation?

Anon makes the argument about juries seeing through the John Edwardsian smoke and mirrors in the 75% of cases that are found for the defendant in med-mal cases. The fact that 75% of such cases are found for the defense speaks volumes to me about the frivolous nature of many such complaints when compared to the near 50/50 split seen in tort cases for nearly all other industries.

What is the value of the pain and suffering of the countless physicians who are subjected to this assault of frivolous claims?

The reality is that most plaintiffs attorneys typically have very little desire to see cases go to court due to this very 75% statistic. Rather, their typical goal is to receive lots of nice juicy out of court settlements, which even the most innocent of physicians are usually advised by their attorney to accept, and usually willingly do, as the prospect of being one of the unfortunate 25% who lose a malpractice case and face financial devastation is simply unacceptable.

So Anon, since you will argue that you are all about patient’s rights, what do you propose to do about all the patients who’s access to care is shot to hell as doctors have to retire early or move to less litigous areas?

Also, since you are so worried about the fox guarding the henhouse, why are you happy with a system that allows the truly incompetent or negligent physicians to continue in practice by simply making payoffs in out of court settlements? Why are you afraid of letting these folks go in front of a true jury of their peers in the form of a health court?

Could it be because there are no lucrative contingency fees to be made there?

As mentioned in my original post, I would propose that a health court not be composed of a single hen-house-guarding judge, but rather be composed of a true panel of ones peers, in similar fashion to the way military court martial proceedings occur.

In the military system, an officer on trial faces a jury pool composed of other military officers. They recognize the need and value of culling from their ranks any unscrupulous or incompetent officers. They recognize the extreme importance of only allowing the most competent and ethical individuals to remain within their ranks, as they are entrusted with the lives of the men under their command.

Similarly, if a physician is accused of negligence or incompetence, he should not face a jury of laymen who may be easily swayed by falacious but persuasive arguments which appeal to emotion. Such cases should not be decided by who can afford the best hired guns and most persuasive arguer.

No, just like in the military system, such physicians should face a jury of other physicians. Just like military officers, fellow physicians recognize the extreme trust society has placed in them as they literally hold people’s lives in their hands. Just like military officers, fellow physicians will not be as easily swayed by red-herring arguments or emotional appeals. They recognize the importance of culling from their ranks all but the most competent, ethical and upstanding members.

I know that such a system would be massively inconvenient for the plaintiff’s attorneys. I know that John Edwards might have to settle for a home that is a little smaller than his current 25,000 square foot castle. I know aspiring attorneys may have to set their sights on the Gulfstream 500 jet rather than the plusher 550.

I’d hope that as fellow professionals, the legal community would be willing to accept such hardships however, for the greater good of society that would be seen by allowing competent physicians to remain in practice without all the current hurdles and fears, and practice more efficient less costly evidence-based rather than CYA-based medicine, and by putting the relative handful of negligent and/or incompetent physicians out of business by subjecting them to the fire of a true jury of their peers in a health court.

As a final note, regarding your question about whether or not I know any physicians who have managed to get out of jury duty with clever excuses, the only clever excuse I needed the one time I was called for Juty Duty was “I’m a doctor” whereupon I was immediately deemed completely unacceptable to the plaintiff’s attorney.

[...] March 15, 2008 in blogging It is pretty common to hear discussions of the malpractice problem in the medical blogosphere, but it is not that often that a blogger publishes a long analysis that covers the subject complete with charts and graphs. [...]

Anon:

“A classic example, although it wasn’t a malpractice case, is the one noted above about hot coffee spilling in the lap of the McDonald’s customer.”

That woman had third degree burns over her torso. She ultimately got $400,000, which included punitives which aren’t typically a factor in med mal, and she offered to settle for her medical bills. Want to trade places with her?

“and I have seen several cases with multimillion dollar awards where there was no “injury”

Name ‘em.

“So Anon, since you will argue that you are all about patient’s rights, what do you propose to do about all the patients who’s access to care is shot to hell as doctors have to retire early or move to less litigous areas?”

If this alleged lack of care had ever been shown to be true, I’d be more worried. Fact is, rural areas have always been scarce of physicians. But since it worries you – how many physicians per capita, and what specialties, are physicians willing to GUARANTEE if they get the liability protections they want? You say there’s a lack of care because of all these frivolous cases, so what do we get if we eliminate them?

““I’m a doctor” whereupon I was immediately deemed completely unacceptable to the plaintiff’s attorney.”

That’s a lie, because you have no clue who excused you in a jury pool. The judge doesn’t tell you and neither do the lawyers.

This is the problem with all you physicians pontificating on the ills of the law. You have no clue what you’re talking about, and you make up half your statistics, or you swallow whatever your insurers tell you and regurgitate it without examination. Moreover, none of your “cures” do a damn thing for the patient. You cannot promise cheaper medical care, more physicians, more specialists, anything.

“Just like military officers, fellow physicians recognize the extreme trust society has placed in them as they literally hold people’s lives in their hands.”

My goodness, what a bunch of sanctimonious crap.

” I know that John Edwards might have to settle for a home that is a little smaller than his current 25,000 square foot castle. I know aspiring attorneys may have to set their sights on the Gulfstream 500 jet rather than the plusher 550.”

What you don’t get is that great trial lawyers won’t quit working or making money, they just won’t work for ordinary people. They’ll go to work for the Fortune 500 companies. Which is more likely to benefit you?

” I was personally aware of many patients who suffered major permanent disability and/or death as a direct result of specialists being forced out of practice in the rural areas of my state by the malpractice mess, the result being that diagnosis and treatment were delayed for hours as these patients were transported to the University Medical Center, which was the only place in the state where many specialists were still available.”

So when are you volunteering to go work in the middle of nowhere if you get this immunity you seek?

” I sincerely believe that there should be a cap on “pain and suffering.””

Why should lobbyists who have never heard the facts of a case get to pick the value of it?

“

Anon:

“Also, since you are so worried about the fox guarding the henhouse, why are you happy with a system that allows the truly incompetent or negligent physicians to continue in practice by simply making payoffs in out of court settlements? Why are you afraid of letting these folks go in front of a true jury of their peers in the form of a health court?”

Do we have to gut the rights of the patients in order to make you police your own? Do you not have any boards that set your professional standards now?

Sorry for engaging with this guy on your blog. It’s clear that we all have our own point of view. I’ve certainly attempted to give some constructive feedback and have attempted to avoid personal attacks, straw men, and red herring arguments. To any extent I have failed in that attempt, please accept my apologies.

Some folks clearly like the status quo when it comes to our nations civil liability system. Some do not. I’m one of the later. I think it is blatantly clear that the system has become broken and perverted.

Ultimately, I seriously doubt much meaningful reform will happen any time soon. There is simply too much lobbying money (i.e. legal bribes) passing into the hands of too many politicians, from the hands of too many folks with a strong vested interest in keeping things the way they are.

Ultimately, our society has the power to make things better, but they don’t appear very interested in doing so.

So be it. Our society will get exactly what it wants.

Just as some addicts have to truly hit rock bottom before they take their addiction seriously and do something about it, I suspect things will have to get much worse in our society before we as a people will take the problems with our judicial system seriously. I just hope we don’t end up pulling a Jim Morrison and drown in our own vomit first.

I sincerely hope that “Anonymous” never has to see himself or a loved one pay the price for our system’s failings in the form of decreased access to timely high quality medical care when such is desperately needed in an emergency situation.

By the way, congratulations on receiving a favorably email regarding the match. I hope you end up in your first program of choice!

Cheers,

Sam

Elizabeth:

A picky correction from the end of your post – there are no specialized patent trial courts in the United States. There is a central appeals court for patent cases, but only a small fraction of cases are actually appealed, and some cases involving patents go to the other circuit courts for a variety of reasons.

There are specialized courts for tax and bankruptcy in the federal system, and some states may have specialized courts for state law matters (e.g., family court, housing court).

” I think it is blatantly clear that the system has become broken and perverted. ”

There’s no doubt many think this – the tort “reform” lobby is an effective one, funded initially by quite a bit of tobacco industry money. However, despite the claims of the insurance industry, which now has taken the banner, scrutiny renders most of their claims to be false.

“I sincerely hope that “Anonymous” never has to see himself or a loved one pay the price for our system’s failings in the form of decreased access to timely high quality medical care when such is desperately needed in an emergency situation.”

I sincerely hope that a physician will somewhere back up this claim, so I can be worried about it. As it stands, we’ve yet to see any guarantees from physicians that if we give them the immunity their liability carriers seek, that they will populate the underserved areas of this country with X number of physicians, X number of specialists, and at X price. Until they do this, this remains a scare tactic and nothing more. Rural areas will always be underserved, because they’re rural.

As for tax, patent and bankruptcy courts, those are statutory creations, and not protected by the Sixth Amendment as they are not common law claims existing at the time of the Constitution.

Matt:

Late to the discussion.
I am an attorney and one of the “bad ones” I guess. The concern many lawyers have with physician styled reform is that the practical outcome will be the elimination of malpractice cases. If this is the desired outcome then the AMA sponsored 250 cap on non-economic damages is a good place to start. Better yet is the Indidana sysstem which has a “hard” (all damages, not just non economic) cap of $850 thousand. (I thought the earlier post about not taking cases less than 250 was conservative if anything)
Indiana while I’m sure it has many outstanding physicians, suffers from the same rural shortages as the adjoining states with more liberal malpractice laws.I honestley do not know if the “cost” of health care is lower in Indianapolis than in Chicago but there certinaly are a lot fewer malpractice lawyers (both sides).

Lawyers believe that a cap on non-economie damages eliminates the ability to represent anyone other than wage earners or those in need of life long medical care. (This is all based on the contingent fee realtiy) Also, if the medical providers liablility insurance carrier risk of going to trial is “capped” at $250 there is never, and I mean never a settlement (see Wisconsin for proof and they have a higher cap).

Clearly, we have different perspectives, we want to maintain our way of earning a living and help our clients. I do not mean you must have unlimited damages to have an effective system. We certianly have our bad apples who file bougus suits and they should be severly sanctioned in an attempt to discourage them and others from doing so.
I am sympathetic to the cost of malpractice insurance and the personal nature of being sued. I’m all for a forum/system that provides for redress to patients. It may suprise many physicians to find out that many lawyers would be open to a health court system. However as was stated earlier, be careful what you wish for. That kind of system may actually encourage smaller cases of clear (or clearer) neglect but little in the way of damages that are currently left out of the system because they are not “worth”) pursuing.

@Matt: Thanks for the perspective and input. I’d prefer a system that compensates more people for malpractice, if it somehow could fix the problems with frivolous lawsuits.

Matt:

Graham,

Completely agree. However, What is frivolous? Have you ever known someone be sued to think the case was anything other than frivolous. (I am not limiting that to M.D.’s) I’m all for sanctioning/disbarring or forever preventing from filing other claims lawyers who file frivolous cases provided we can agree on what it means. For example, I think of frivolous as suing for a perforated colon following colonoscopy or the like. Also, and I’m not sure you can ever fix this to everyones liking. The legal system is truly outcome driven. Horrible care may not cause much mharm so there is no case. Care that is arguable (an this gives rise to the “frivolous” issue) which results in a horrific outcome will be looked at very closely before a lawyer rejects the case. I’m not saying this is good or bad, just saying it is true.
I would expect a physician to believe any medical decision which could possibly be justified (not refering a 30 year old female with a newly discovered breast mass but choosing to follow for six months and then refer if still present) should not result in legal action. Additionally, if it did, it would be considered frivolous.
I would love a system that helped to eliminate some of the dislike/distrust between the professions. Wont be easy.

Quoting Matt, “It may suprise many physicians to find out that many lawyers would be open to a health court system. However as was stated earlier, be careful what you wish for. That kind of system may actually encourage smaller cases of clear (or clearer) neglect but little in the way of damages that are currently left out of the system because they are not “worth”) pursuing.”

It wouldn’t surprise me at all. The majority of attorneys I know (and I know a heck of a lot of them…I’m married to one in fact) are pretty decent and reasonable professionals and not too prone to chase ambulances.

As far as being careful what we wish for, I can only say with all sincerity that what I wish for as a physician is to have the best possible health care system for our population.

The fact that clear cases of neglect are ignored by the plaintiff’s attorney simply because they don’t have as much potential payoff as other cases with perhaps much less clear neglect but larger potential financial gain seems to me to indicate that our current system is not really doing much to “protect patients rights” or to serve and protect the public.

As a professional, I want clear cases of neglect, incompetence and ethical violations to be brought to light, no matter how small the potential financial implications might be. I don’t want bad physicians to be allowed to simply make out of court payoff settlements to keep their victims quiet and continue practicing.

I feel that these bad physicians represent a very small minority of physicians. The public is better served and the medical profession is strengthened if they are given the boot.

The rest of the us will be able to practice much better and cost effective medicine if we are simply allowed to do so and aren’t constantly forced to view every patient as a potential lawsuit and practice CYA medicine and CYA chart documentation.

I think health courts could potentially make that happen if they could take the big financial reward incentive out of the equation.

Oh, and by the way Matt, I have to disagree with your first sentence of your first post. You don’t sound like one of the “bad ones” to me. You sound like a professional.

It may surprise many lawyers to find out that most physicians do not hate all lawyers or the legal profession. We just hate being constantly targeted and having our ability to practice good medicine hindered by the handful of bad apples in your profession.

Just as we’d like your professions help with getting rid of our bad apples (which the current system is not doing, but health courts potentially could), we’d love to provide any help we can to your profession in getting rid of your bad apples.

I think the best way to eliminate frivolous claims, however we wish to define them, is to take away the financial incentive that is behind them. I think health courts have the potential to do that and to effectively simultaneously strengthen and improve both the legal and the medical professions.

Ultimately when both professions are strengthened through demanding more professionalism of their members, it’s a win-win situation for both and a BIG WIN situation for society as a whole.

(Of course health courts would do very little to address the rest of the broken civil liability system in our country, but as my papa used to say “You can only eat a hog one bite at a time.”)

Welcome!

This is a medical weblog--a collection of thoughts about medicine, medical training, and health policy--written by a fifth-year medical student.

I recently stopped blogging, as I graduated from medical school and I'm now a physician in my residency training in New York City. But feel free to read and enjoy!